Smith v. Wilmington & W. R. Co
| Decision Date | 20 May 1900 |
| Court | North Carolina Supreme Court |
| Parties | SMITH. v. WILMINGTON & W. R. CO. |
MASTER AND SERVANT—DAMAGES—EVIDENCE —INSTRUCTIONS TO JURY—APPEAL AND ERROR — CASE ON APPEAL — TESTIMONY IMPROPERLY INCLUDED — DOUBTFUL TESTIMONY—REVERSAL—SCOPE OF NEW TRIAL.
1. Where, in an action by a servant for injuries, there was no evidence as to his loss of time, payment for medical attention, or endurance of mental anguish, it was error to instruct that he was entitled to recover therefor.
2. Where the trial judge considered testimony as to negligence of a master causing an injury as improperly included in the case on appeal, and such testimony was thereafter included in a statement of the case in response to a certiorari, which such judge certified that he considered correct, after consideration of numerous affidavits and hearing arguments, and error appeared on the issue of damages, requiring reversal, a new trial should not be restricted to the trial of such issue, though the uncertainty as to such testimony might not be sufficient to warrant reversal.
Appeal from superior court, Sampson county; Adams, Judge.
Action by Frank Smith against the Wil mington & Weldon Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.
Junius Davis and H. L. Stevens, for appellant.
Armistead Jones and Womack & Hayes (E. W. & J. D. Kerr and F. R. Cooper, on the brief), for appellee.
This action was brought by the plaintiff to recover damages against the defendant company for a personal injury sustained by the plaintiff while in the performance of work for the defendant, which the plaintiff alleges was dangerous, and the character of which was unknown to him at the time he sustained the injury. On the issue of damages, his honor instructed the jury that, if the plaintiff was entitled to recover at all, he was entitled to recover such damages as would compensate him for the loss of his time, for the money paid out by him for medical attention, for the physical pain he had suffered, for the mental anguish he had endured, and for the deterioration in his labor as a carpenter. We have carefully read, over and again, every line of the evidence; and there is not a word in reference to the time lost by the plaintiff, nor of any money paid out by him for any medical attendance, nor of any mental anguish endured by him. There was, therefore, error in that instruction, for which there must be a new trial. We would restrict this...
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